State High Court Protects Records at Rutgers Environmental Law Clinic

Outlet mall developer stymied despite lower court ruling in its favor

In a decision with significant legal and environmental implications, the New Jersey Supreme Court yesterday ruled that the Rutgers Environmental Law Clinic does not have to provide access to its records to a developer.

The case, involving a developer whose plan to build an outlet mall in Frankford Township in Sussex County was challenged by the clinic, centered on whether cases at public law school clinics are subject to the state’s Open Public Records Act (OPRA).

In deciding the records are not, the court gave a victory not only to the Rutgers Environmental Law Clinic, but also to hundreds of other law clinics around the country that provide free legal representation to clients who lack the resources to hire an attorney.

“It’s a very important part of legal education in the country,” said Edward Lloyd, director of clinical education at Columbia University and a former director of the Rutgers clinic, who submitted a supporting brief in the case. “This ruling gives credence to that role. Clinics around the country have been paying attention to this since Day 1.”

In deciding the clinic is not subject to opening its records, the court found that doing so might have a chilling effect on people in need of legal assistance by causing them to hesitate to use a public law school clinic out of fear their records could be disclosed and discourage clients from communicating with their counsel.

In New Jersey, the Rutgers clinic has been a thorn to developers and, occasionally, to the state and local governments since its inception in 1985.

The clinic successfully challenged a move by the Kean administration to ease long lines at inspection stations by easing inspection requirements for motorists. It backed the state when it ordered a walkway to be built from the George Washington Bridge to the Bayonne Bridge over the protest from the New Jersey Builders Association. It has sued local and regional sewerage authorities on numerous occasions for failing to comply with permits to dump wastewater into rivers and other waterways.

In the case before the Supreme Court, Sussex Commons Associates, LLC had sued to gain access to a wide range of records between the clinic and local groups it was representing to challenge the project, as well as from another entity. Its bid was rejected in a lower court, but reversed by an appellate panel.

The Supreme Court reversed that decision. “We find no evidence that the Legislature intended to apply OPRA to teaching clinics that represent private clients, or that it meant to cause harm to clinical programs at public law schools when it enacted OPRA,” the court said.

Howard Buerkle, a managing partner of Sussex Commons Associates, said the ruling disappointed him.

“It had nothing to do with the environment,” he said. “They spent a huge amount of tax dollars to stop commerce that people wanted.”

The court found otherwise. The ruling noted that Sussex Commons initially required 18 different categories of items from the Rutgers Clinic, causing a huge administrative burden of preparing for, responding to, and possibly litigating over each item requested.

Some had viewed the Sussex Commons argument as a so-called SLAPP suit, an acronym given to court filings aimed at strategic litigation against public participation.

“It is difficult to measure the precise impact of the above concerns,” the court said. “But the consequences are likely to harm the operation of public law clinics and, by extension, the legal profession and the public.”

Lloyd agreed. “It really demonstrates how important clinical education is not only at Rutgers but at clinics around the country,” he said. “It’s a very important part of legal education in the country. This ruling gives credence to that role.”

Ironically, Lloyd heard of the decision as he was preparing briefs to challenge waiver rule adopted by the New Jersey Department of Environmental Protection on behalf of numerous environmental groups.

The rule would allow DEP to waive its regulations if one of four conditions are met: They constitute an undue burden; they conflict with rules of other agencies; there is a public emergency; and there is a net environmental benefit.

Jeff Tittel, director of the New Jersey Sierra Club, hailed the court decision. “This case is a real victory for the environment, especially for groups and citizens who are involved in litigation. Had the appellate division stood, it would have severely limited the rights of environmental advocates and others to sue or be represented by law clinics.”